Court Ruling on Abortion for Rape Survivor is Reminder of Need to Amend the Law

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New Delhi: The Supreme Court’s landmark verdict on Thursday allowing a minor rape survivor to abort her more than 24-week-old foetus – following clearance for medical doctors – is likely to give a push to the proposed amendments to the Medical Termination of Pregnancy Act, 1971 which seek to allow termination of pregnancy beyond 20 weeks.

The MTP Act allows abortions under a broad range of conditions up to 20 weeks of gestation or five months of pregnancy. The conditions under which termination of pregnancy is allowed include continuation of pregnancy posing a risk to the life of the pregnant woman or of grave injury to her physical or mental health; pregnancy caused by rape (presumed to constitute grave injury to mental health); pregnancy resulting from the failure of contraception used by a married woman or her husband; and a pregnancy in which there is substantial risk that the child, if born, would be seriously handicapped due to physical or mental abnormalities.

For termination of pregnancy between 12-20 weeks, the opinion of two Registered Medical Practitioners is required.

Proposed amendments

The Ministry of Health and Family Welfare in 2014 proposed to amend the MTP Act by increasing the gestation limit from 20 to 24 weeks for special categories of women (rape victims, women with disabilities – to be defined in the rules) and making first trimester abortions available on request by removing the requirement of a doctor’s approval up to 12 weeks of gestation.

Importantly, since certain foetal abnormalities that are incompatible with life are detected only after 20 weeks of gestation, the proposed amendments would address situations like the Nikita Mehta case by making provisions to allow for late term terminations in such cases.

“In my mind, the Supreme Court’s decision is a revalidation of the urgent need to amend the MTP Act, 1971. This young girl and her family have been brave to battle it out in courts but there would be many more such cases of girls and women who suffer in silence due to the current provisions of the law. The amendments proposed to the MTP Act include the clause of extending the gestation period for survivors of rape to 24 weeks, without the need to take recourse to Section 5 of the current MTP Act. Once the amendments to the MTP Act come through, girls and women would not be forced to move the highest court for a solution. I hope the Supreme Court’s judgment will help accelerate the passage of the amendments to the MTP Act, 1971 which have been deliberated on for half a decade,’’ says Vinoj Manning, Executive Director, Ipas India.

Section 5 of the MTP Act, 1971 allows for abortion beyond the stipulated time and at non-designated places when it is to be done immediately in order to save the life of the pregnant woman.

In the Nikita Mehta case, the child’s severe abnormal condition was detected only after 20 weeks of conception and she had approached Supreme Court to terminate the foetus as the law did not permit so. The Supreme Court, in her case, had disallowed the abortion. Mehta subsequently had a miscarriage.

Unsafe abortions as cause of maternal deaths

Though abortion has been legal in India for over 40 years now, every two hours a woman dies because of abortion related causes. Statistics unsafe abortions are the third largest cause of maternal deaths in India and account for 8% of maternal mortalities because women do not have access to safe abortion services.

One of the main reasons for women not receiving MTP services at site is non-availability of doctors. In comparison, mid-level providers (which include nurses, AYUSH doctors) are not only available at all levels of the health system but global experiences suggest that these cadres of trained providers can safely offer abortion services.

The National Population Policy, 2000 had also identified permitting mid-level providers to offer abortion services as one of the strategies to remove barriers to women’s access to safe abortion services.

At the time of the passage of the MTP Act in 1971, Dilation and Curettage (D&C) was the only available technology. Now, there are new technologies like manual vacuum aspiration (MVA) and medical methods of abortion (MMA) which are very safe.

Experts say there is no evidence that increasing the gestation limit for abortion leads to an increase in the abortion rate – a major argument used by those opposing the MTP amendments. Whether abortion is legally more restricted or available on request, a woman’s likelihood of having an unintended pregnancy and seeking induced abortion is about the same. However, legal restrictions, together with other barriers, mean many women induce abortion themselves or seek abortion from unskilled providers.

Global practice

Globally, out of 60 countries with abortion laws that specify a gestation limit within their law, 34 countries allow abortion anytime for more indications than saving the life of mother. These indications include foetal impairment, rape, economic and social reasons.

Ethiopia has a provision in its law for women who are victims of rape. No questions are asked in case a woman wants an abortion on grounds of rape or for minors who are unprepared for raising a child. In 2004, Ethiopia approved a new law which legally prohibits abortion but allows it under certain conditions including when the pregnancy results from rape or incest, in case of foetal abnormalities, for women with physical or mental disabilities and for minors who are physically or psychologically unprepared o raise a child.

The revised law establishes that poverty and other social factors may be grounds for reducing the criminal penalty for abortion and that in case of rape or incest, no proof is required beyond the women’s statement that it has occurred.

Who can perform abortions

Under the existing MTP Act provisions, an abortion can only be performed by a Registered Medical Practitioner (RMP), defined as:

“a medical practitioner who possesses any recognised medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956, (102 of 1956) whose name has been entered in a State Medical Register and who has such experience or training in gynaecology and obstetrics as may be prescribed by rules made under this Act.”

The ministry’s proposed amendments will replace the requirement of an RMP with that of a Registered Health Care Provider (RHCP) – who could be a healthcare provider qualified under the Indian Medicine Central Council Act and entered into the Central Register or State Register of Indian Medicine (Ayurveda, Unani and Siddha), a qualified general nurse and a qualified auxiliary nurse midwife.

The proposal to allow persons other than just doctors to perform abortions has been criticised by the Indian Medical Association. “MTP is a procedure meant to be conducted by an allopathic doctor only and cannot be conducted by the paramedical staff on their own as they are not at all well equipped to handle critical medical conditions arising out of excessive bleeding especially during incomplete abortions as a result of procedures provided by unauthorised medical or paramedical professionals during and after MTPs,” Narendra Saini, head of the IMA, was quoted as saying.

While a section of the Indian medical community is suspicious of both non-allopathic systems and the notion that anyone less than a doctor can perform an abortion, the World Health Organisation (WHO) has said involving health workers can help reduce the number of deaths arising from the 22 million unsafe abortions that take place worldwide each year, almost all in low- and middle-income countries.

Adolescent girls and those who are poor, unmarried, less educated, and those who live in rural contexts are particularly at risk of unsafe abortion. Even though safe, simple, effective primary healthcare level interventions exist, many women still do not have access to them, placing their lives unnecessarily at risk.

The WHO has now come up with a new guideline, ‘Health Worker roles in providing safe abortion care and post-abortion contraception’, that aims to help break down one critical barrier which limits access to safe abortion care – the lack of trained providers.

The WHO guideline is the first to make an evidence-based recommendation on the safety, effectiveness, feasibility and acceptability of involving a range of health workers in the delivery of recommended and effective interventions for providing safe abortion and post-abortion care, including post-abortion contraception.